dissenting with opinion
The language of the USAC document upon which the majority relies does not release USAC from liability for its own negligence because it does not appear in the portion of the document captioned “RELEASE AND WAIVER OF LIABILITY” but instead is included in a provision of the document captioned'“INDEMNITY AGREEMENT.” Furthermore, the release language which does appear in the “RELEASE AND WAIVER OF LIABILITY” provision fails to refer specifically or explicitly to USAC’s own negligence. For these reasons, I believe the purported release fails to meet the specificity and explicitness requirements we imposed in Marsh and Powell, and cannot be said, as a matter of law, to have been knowingly and willingly entered into by Larry. I must therefore respectfully dissent from the majority decision directing a summary judgment for USAC.
While parties may agree in advance that one is under no obligation of care for the benefit of another, we have consistently *926held that such a self-exculpatory agreement is to be construed strictly against the party protecting itself thereby. See, e.g., Plan-Tec Inc. v. Wiggins, 443 N.E.2d 1212, 1222 (Ind.Ct.App.1983) (citing Indiana State Hwy. Comm’n v. Thomas, 169 Ind.App. 13, 26, 346 N.E.2d 252, 259 (1976)). The agreement must specifically and explicitly refer to the negligence of the party seeking the release from liability, and the agreement to release the party from its own negligence must be knowingly and willingly made. Marsh, 707 N.E.2d at 1000. The provision which the majority interprets to bar Anita’s negligence claim is conspicuous by its absence from that part of the contract which addresses Larry’s release of USAC. Further, the language which is included in the release provision is not specific enough to satisfy the Marsh standard.
In Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 146 (1988), the court addressed a situation like the one before us where a provision which purported to release a party from its own negligence was located outside of a release and waiver of Lability clause:
Moreover, the purported release is located at the very end of a warranty clause of a performance contract which sets forth with particularity the parties’ respective performance obligations in separate paragraphs. Given the manner in which the remainder of the contract is drafted, it defies both logic and common sense that the parties would intend to release the seller from all Lability arising out of defective design of the structure by tacking broad • exculpatory language to the end of a limited warranty clause. We conclude that the trial court was correct in ruling that the contract language was not an effective release of defendant’s liabihty for negligent design of the facility. ■
I believe the release language upon which the majority relies is similarly ineffective because it is outside of the “RELEASE AND WAIVER OP LIABILITY” section of the agreement and is instead found two paragraphs later in a section captioned “INDEMNITY AGREEMENT.” Here, as- in the Colgan situation, it seems highly unbkely that the parties could have intended to release USAC from all liability for its own negligence by means of an indemnity provision when the contract included a separate release and waiver of liabihty section.
USAC’s entitlement to summary judgment, then, should more properly turn upon the language of the release and waiver of liability provision of its agreement with Larry Smith. That language is not specific and explicit enough to release USAC from liability arising from its own negligence. The release and waiver of liability provision stated in pertinent part that Larry released USAC and the other releasees “from ah Lability ... from any loss, damage or injury (including death) to my person or property in any way resulting from, or arising in connection with, or related to, any sanctioned event ... from any cause whatsoever including ... 'the negligence of other persons.” (R. at 23) (emphasis supplied).
While this release provision purports to release USAC from liability for the negligence of “other persons,” it cannot be read to specifically and explicitly release USAC from liability for its own negligence. The trial court thus properly denied USAC’s motion for summary judgment, and I would affirm.